Gaines v. State ( 1990 )

OPINION

WHITTINGTON, Justice.

A jury convicted Steven Lamont Gaines of aggravated robbery and assessed his punishment at sixty years’ confinement in the Texas Department of Corrections. The trial court revoked appellant’s probation in a prior burglary of a vehicle case and assessed his punishment at four years’ confinement. Appellant raises five points of error, claiming that: 1) the trial court abused it discretion by denying his request to distribute a juror questionnaire prior to the beginning of voir dire; 2) the trial court erred in allowing the State to cross-examine witnesses at the punishment stage of the trial regarding whether appellant’s conviction would affect their testimony; 3) the trial court erred in allowing an in-court identification of appellant because it was tainted by an out-of-court identification; 4) the trial court erred in admitting evidence of an extraneous offense; and 5) the trial court erred by allowing into evidence testimony concerning offenses committed by individuals other than appellant. We affirm.

In his first point of error, appellant argues that the trial court abused its discretion by denying his request to distribute juror questionnaires prior to the beginning of voir dire. However, the transcript reflects that appellant’s motion to allow the use of juror questionnaires was granted. The record of voir dire proceedings does not reflect that this matter was discussed or that any adverse ruling was obtained.

In order to preserve a complaint for appellate review, a party must present to the trial court a timely motion and obtain an adverse ruling. Tex.R.App.P. 52(a). When no adverse ruling is obtained, nothing is presented for review. Terry v. State, 517 S.W.2d 554, 557 (Tex.Crim.App.1975). We overrule this point of error.

In his second point of error, appellant argues that the trial court erred by allowing the State to question a witness, Victor McRea, called by appellant at the punishment stage of trial regarding whether or not appellant’s conviction in the instant offense would affect his testimony. At the punishment phase, the following transpired:

DEFENSE COUNSEL: Do you understand that this jury has just convicted your friená, Steven Gaines, of aggravated robbery?

THE WITNESS: All right.

DEFENSE COUNSEL: Do you know that, sir?

THE WITNESS: Okay.

DEFENSE COUNSEL: I am telling you they have.

THE WITNESS: Okay.

******

DEFENSE COUNSEL: Do you want to tell this jury something about your friend, Steven Gaines?

THE WITNESS: Well, yes. You know, the years — all the years I have known Steve, I have never really known him to [sic] such a thing as this. When I heard what had happened, I was stunned because I never knew him in the neighborhood to fight.

PROSECUTOR: Object to being non-responsive.

THE COURT: Sustained.

DEFENSE COUNSEL: Is he a violent person?

THE WITNESS: I have never known him to be a violent person.

PROSECUTOR: I will object — well, I won’t object to that.

THE WITNESS: I have never known him to have a hot temper or anything like that. You know, he was always—

PROSECUTOR: Object to being non-responsive.

THE COURT: Sustained.

******

During cross-examination concerning appellant’s conviction for burglary of a vehicle, McRea testified as follows: ■

PROSECUTOR: With intent to commit theft or some felony while breaking into a vehicle?

THE WITNESS: That is right.

PROSECUTOR: That is bad, isn’t it?

THE WITNESS: Yea, it is bad.

PROSECUTOR: And you indicated that you would want him in your home?

THE WITNESS: Yes, uh-huh.

PROSECUTOR: You would want him in your home knowing he took a hatchet and put it on a man’s neck?

THE WITNESS: Yes, uh-huh.

PROSECUTOR: All right. That doesn’t bother you any?

THE WITNESS: No, it sure don’t.

PROSECUTOR: It doesn’t bother you, does it?

THE WITNESS: No.

PROSECUTOR: And it doesn’t bother you that he was out at White Rock Lake and he hit people with a hatchet and hit them in the head with a hatchet?

THE WITNESS: No, it sure don’t.

DEFENSE COUNSEL: May it please the Court, I am going to object to this line of questioning. The matter before the jury is the appropriate punishment for the offense of aggravated robbery, as alleged in the indictment in the case.

THE COURT: Overruled.

PROSECUTOR: Now, you would want him in your home knowing that, wouldn’t you?

THE WITNESS: Yeah.

PROSECUTOR: That doesn’t bother you?

THE WITNESS: No.

PROSECUTOR: It doesn’t bother you that some women were hit with a hatchet by your friend down here, does it?

THE WITNESS: No, it sure don’t.

******

PROSECUTOR: All right. And you still want Steven Gaines in your house knowing that he, at hatchet point, made a woman take his penis in her mouth and he ejaculated in it?

THE WITNESS: Uh-huh.

PROSECUTOR: That doesn’t bother you, does it?

THE WITNESS: No.

Appellant’s objections at trial came only after the complained of questions had been asked and answered. A party must make a timely and specific objection to preserve a complaint for appellate review. Tex.R. App.P. 52(a). In order to be timely, the objection must be made as soon as the ground becomes apparent. Thompson v. State, 691 S.W.2d 627, 635 (Tex.Crim.App. 1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985). Appellant’s objection was not timely. Further, appellant later failed to object to the State’s later cross-examination of the same witness about whether he was “bothered” that appellant had assaulted and beaten a woman with a hatchet. Because the same evidence objected to was subsequently admitted without objection, any error was rendered harmless. Anderson v. State, 717 S.W.2d 622, 628 (Tex.Crim.App.1986). We overrule appellant’s second point of error.

In his third point of error, appellant contends that the trial court erred in allowing the impermissible in-court identification of appellant for the reason that it was tainted by out-of-court identification procedures. Appellant complains that he was the only person in a yellow tank top in the photographic line-ups shown to M.B, A.H., and Steve Montana. M.B., A.H., and Steve Montana had told police that one of the attackers was wearing a yellow tank top. Convictions based on eyewitness identification testimony will be set aside because of a pretrial photographic lineup only if the identification procedure: (1) was im-permissibly suggestive, and (2) gave rise to a substantial likelihood of misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968); Turner v. State, 614 S.W.2d 144, 146 (Tex.Crim.App.1981). Whether a pretrial procedure fatally tainted the in-court identification of the accused so as to deny him due process must be evaluated in light of the totality of the surrounding circumstances. Jackson v. State, 657 S.W.2d 123, 127 (Tex.Crim.App.1983). Factors considered in determining the origin of in-court identification testimony include the opportunity of the witness to observe the defendant, the degree of attention, the accuracy of any physical descriptions, the degree of certainty, and the amount of time between the offense and the identification of the accused. Jackson, 657 S.W.2d at 129; Ross v. State, 715 S.W.2d 55, 56 (Tex.App.-Dallas 1986, no pet.). Absent clear and convincing evidence that the in-court identification is tainted by improper pretrial procedures, testimony identifying the defendant is always admissible. Holloway v. State, 691 S.W.2d 608, 615 (Tex.Crim.App.1984).

A.H., Steve Montana, and M.B. each testified at a separate hearing conducted outside of the jury’s presence to the circumstances surrounding their identification of appellant. They all testified that the parking lot where the robbery occurred was well-lighted; and each identification witness was, at some point, close to appellant. All three witnesses said that appellant was the assailant carrying a hatchet and wearing a yellow tank top, alternatively referred to as a “muscle shirt.” A.H. picked out appellant from a set of six photographs depicting black men of approximately the same age. Although appellant was the only individual pictured in a yellow tank top, A.H. testified that her identification was based strictly on recognizing appellant’s face from the time of the offense. Steve Montana and M.B. also selected appellant’s picture from a group of six similar photographs based on their recollection of the events. After examining the factors delineated in Jackson, we hold that the in-court identification was not tainted by improper pretrial procedures. Jackson, 657 S.W.2d at 129; Holloway, 691 S.W.2d at 615. We overrule this point of error.

In his fourth point of error, appellant asserts that the trial court erred in admitting evidence of extraneous offenses committed by appellant. The accused may not be tried for some collateral crime or for being a criminal generally. Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App.1983). The admissibility of an extraneous offense is controlled by a two-step test: the evidence must (1) be relevant to a material issue in the case, and (2) possess probative value which outweighs its inflammatory or prejudicial effect. Robinson v. State, 701 S.W.2d 895, 896 (Tex.Crim.App.1986); Williams, 662 S.W.2d at 346. Where an offense is one continuous transaction, however, or another criminal act is part of the case on trial or closely interwoven, then proof of all the facts is proper. Moreno v. State, 721 S.W.2d 295, 301 (Tex.Crim.App.1986); Archer v. State, 607 S.W.2d 539, 542 (Tex.Crim.App.1980), cert. denied, 452 U.S. 908, 101 S.Ct. 3037, 69 L.Ed.2d 410 (1981). Sometimes called “res gestae,” an extraneous offense in this circumstance becomes admissible to show the context in which the indicted criminal act occurred because the jury is entitled to hear what happened immediately before and after the offense to realistically evaluate the evidence. Mitchell v. State, 650 S.W.2d 801, 811 (Tex.Crim.App.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 985, 79 L.Ed.2d 221 (1984); Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App.1972). The record reflects that the complainant, A.H., and her companions were walking through a wooded area near the spillway at White Rock Lake. A.H. testified that she, M.B., Steve Montana, and Steve Unruh were out at White Rock Lake on July 20, 1987. They were heading back to Steve Montana’s van when she heard yelling and ran ahead to see what was happening. She said that it sounded like people were fighting. The record further reflects that Edward Mulder and another fisherman were being robbed and assaulted by the appellant and his associates and their cries of pain were heard by the complainant. She and her companions had been unaware of the defendants until this time when they heard the outcries and went to find out what was going on. When they ran toward the area where the events were taking place, it was then that she and her companions were accosted by appellant and his associates. She testified that she was confronted by appellant, who was carrying a hatchet and who asked for her “fishing license.” She said that she was near an area where people fish. She identified appellant in open court as the man with the hatchet.

She further testified that after appellant confronted her, he called out to his companions, “here they are, they’re over here.” He then called her a “white whore” and hit her with his hatchet when she tried to escape into Steve Montana’s van. He ripped off her shirt and repeatedly struck M.B.

A.H. further testified that appellant ordered both girls to take off their clothes. Meanwhile, appellant’s companions beat Steve Montana and Steve Unruh with a tire iron and axe. Appellant then took the girls’ jewelry from them. Appellant helped his companions beat Steve Montana while others watched over A.H. and M.B. The girls were sexually assaulted. Appellant sexually assaulted M.B. and others sexually assaulted A.H. These events were a group of actions in the crime spree jointly engaged in by appellant and his companions. The events were so closely interwoven as to be admissible to show the context in which the offenses occurred. Maynard v. State, 685 S.W.2d 60, 67 (Tex.Crim.App.1984).

Even if the admission of the extraneous offenses was error, it was harmless. This court need not reverse a case due to trial error provided that we find “beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.” Tex.R.App.P. 81(b)(2). It can safely be said that the evidence of which appellant does not complain is so overwhelming and the facts so egregious that the alleged error made no such contribution to either conviction or punishment. Appellant’s fourth point of error is overruled.

In his fifth point of error, appellant contends that the trial court erred in allowing into evidence testimony concerning offenses committed by individuals other than appellant. Appellant complains of evidence that other individuals sexually assaulted A.H., assaulted Steve Montana, sexually assaulted M.B., and robbed Edward Mulder.

Evidence of extraneous offenses should not be introduced unless and until it is shown that the accused participated. Ingham v. State, 679 S.W.2d 503, 507 (Tex.Crim.App.1984). In this case, the State showed that appellant was a party to all of the extraneous offenses committed by his companions. A.H. testified that appellant held up the hatchet and told her and M.B. to get their “fucking clothes off now.” He then took M.B.’s earrings from her. A.H. said that appellant fought with Steve Montana on the ground while one of his companions touched her all over her body. She testified that two of appellant’s companions were also hitting and kicking Steve Montana. A.H. testified that after one of appellant’s companions raped and beat her, she saw appellant and another man with M.B. She had asked the man who was raping her to tell “them” to stop hitting M.B. because she could hear her screaming in pain. The attacker complied. When she next saw Steve Montana, he was bloody and his front teeth had been knocked out.

Appellant’s participation in all of these events demonstrated that he was acting in concert with his companions. Although Edward Mulder was not able to identify who had beaten and robbed him, A.H. testified that she had run up to the area near where Edward Mulder was attacked because she heard yelling. At that point she and her companions were attacked. She later saw men lying down near a fishing area. Edward Mulder could hear female voices screaming while he was lying face down as he was instructed to do by his attackers. We hold, therefore, the evidence of the extraneous offenses was admissible. See Smith v. State, 547 S.W.2d 6, 11 (Tex.Crim.App.1977); Heathcort v. State, 709 S.W.2d 303, 306 (Tex.App.-San Antonio 1986, no pet.). We overrule appellant’s fifth point of error.

The judgment is affirmed.